Another Court Gets It Right: Class Certification Must Focus On Plaintiffs’ Theory Of Liability, Not Its Merits

Ever since the seminal case of Brinker v. Superior Court (2012) 53 Cal.4th 1004, class action attorneys in California have grappled over the following issue:  Should a trial court reviewing a motion for class certification focus on the theory of liability presented by the plaintiffs, or on the merits of the plaintiffs’ claims? Gear-and-Gavel_dark-blue Put differently, can a trial court deny class certification on the grounds that it rejects a plaintiff’s theory of liability?  The recent case of Hall v. Rite Aid Corporation (May 2, 2014) 2014 DJDAR 6145 provides some guidance regarding these questions.  In our opinion, Hall gets it right on both counts.

But first, a little background.  The politics of this issue are not subtle.  The anti-class action folks would like for class certification motions to focus on the merits.  They believe that judges should be able to deny certification on the grounds that the plaintiffs are wrong about either the facts or the law or both.  The reason for this political play is that once class certification is granted, notice must go out to all class members apprising them of their rights and allowing them to either remain involved or opt out of the case.  Anti-class action folks do not like these notices, because they tend to result in more people learning about the illegal conduct that is going on, which, in turn, leads to more people asserting their rights.  At that point, the proverbial toothpaste is out of the tube and unlikely to go back in.

Perhaps the most blatant example of this approach can be found in the infamous Dukes v. Wal-Mart case.  There, the conservative bloc of the United States Supreme Court held that federal judges should conduct rigorous inquiries into the bases of expert witness opinions that are used to support complicated motions for class certification.  Where the judges disagree with the expert opinions, the judges are free to deny certification.

In Dukes, the plaintiffs’ statistical expert, Dr. Richard Drogin, conducted a study which concluded that women who worked for Wal-Mart were paid less than men in virtually every job.  Judge Antonin Scalia savagely attacked Dr. Drogin, and rejected his study.  Judge Scalia then used this merits-based finding as a basis for denying class certification.

Dukes was decided under the Federal Rules of Civil Procedure.  California law is different.  In Brinker, the California Supreme Court reached a very different, and, to us, correct, conclusion.  Brinker held that the purpose of class certification motions is not to inquire into the validity of the plaintiffs’ claims.  To the extent that such inquiries are necessary, they must be “closely circumscribed.”  Accordingly, all inquiries into the merits of a case must be postponed until after the court has decided whether to grant class certification or not.

Several appellate cases have relied upon Brinker in holding that trial courts must focus on the plaintiffs’ theory of liability as opposed to the merits of the plaintiffs’ case.  See Faulkinbury v. Boyd (2013) 216 Cal.App.4th 220, 232; Bradley v. Networkers International, LLC (2012) 211 Cal.App.4th 1129, 1141-42; Benton v. Telecom Netowrk Specialists, Inc. (2013) 220 Cal.App.4th 701, 724-25.  In Bradley, the court recognized that in wage and hour cases, the fact that some class members might not have suffered the damages at issue would “rarely if ever stand as a bar to certification.”  211 Cal.App.4th at 1150-1153.

The facts of Hall demonstrate why this debate is important.  The plaintiff in that case is a former cashier/clerk at Rite Aid.  She filed a lawsuit claiming that Rite Aid had broken the law by not providing suitable seating.  (Section 14 of IWC Wage Order 7-2001 requires that employees must be provided with seats when the nature of their work permits it.)  Ms. Hall successfully moved for class certification in October 2011.

Shortly before trial, Rite Aid challenged Ms. Hall’s trial plan under the case of Duran v. U.S. Bank (currently pending before the California Supreme Court).  Rite Aid argued that the court should decertify the class based on that challenge.  The trial court permitted Rite Aid to file a decertification motion.  Rite Aid then argued that there were major variations among class members in terms of what they did at work, and that those variations required individualized determinations for each class member.  The court granted Rite Aid’s motion and decertified the class.

The Court of Appeal reversed, meaning that Ms. Hall’s case could proceed as a class action.  The Court concluded that the trial court had erred by focusing on Rite Aid’s argument that the phrase  “nature of the work” meant that the court had to determine whether the nature of each cashier’s work permitted them to sit.  To the contrary, the trial court should have focused on Ms. Hall’s theory of liability:  that Rite Aid’s policy of not providing seats to any cashiers violated the Wage Order because check-out work permitted the use of seats regardless of how much time cashiers might have spent performing other duties.

Finally, the Court of Appeal correctly held that in light of Brinker, trial courts must focus on whether the theory of liability presented by plaintiffs is capable of resolution for the entire class.  Trial courts should not focus on whether the plaintiffs’ theory of liability is correct on a substantive level.

The class action landscape in California and elsewhere is constantly changing.  If you think you might have a class action lawsuit, be sure to consult with experienced attorneys who know what they are doing.  At Hunter Pyle Law, we have handled numerous class actions.  Attorney Hunter Pyle regularly speaks on panels involving class actions and wage and hour issues.  For a free consultation, call us at 510.444.4400, or email us at